United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS A BARBER (of Counsel) MESSRS FARLEYS Solicitors 22/27 Richmond Terrace Blackburn Lancashire BB1 7AQ


 


JUDGE COLLINS CBE

1. This is an appeal against the decision of an Employment Tribunal sitting at Manchester, the extended reasons having been promulgated on 13 September 1999. It is a preliminary hearing and our function is to decide whether there is a reasonably arguable point of law to justify the case proceeding to a full hearing.
2. The decision of the Tribunal was that the Appellant was unfairly dismissed, but they proceeded to decide that if the Respondents had adopted a proper procedure for proper reasons the Appellant's contract of employment would have been terminated after a further 4 weeks. Accordingly they made a basic award of £1,980.00 and a compensatory award of £760.00 only, to reflect the decision which I have just mentioned. The prescribed period of recoupment meant that the £760.00 would have been recouped under the regulations.
3. The Notice of Appeal was received here on 25 October 1999 and alleges in essence that the Tribunal's decision that the Appellant would have been dismissed in 4 weeks in any event was taken without any material evidence to support it and without hearing representations. In parallel with that it is said that the Tribunal was unreasonable to make an assumption as to what the medical evidence might have shown and act in accordance with that assumption.
4. The facts were that the Appellant was 33 years old on the date of his dismissal. He was employed from 11 August 1989 to 7 May 1999 as a process operator by the Respondents. In the 3 years prior to his dismissal he had had many periods of either self or medically certified illness. By way of example, in the 2 years prior to the termination he had had 188 days off. The Tribunal accepted that all those periods of illness were certified either by the Appellant himself or by doctors in accordance with the company's procedures.
5. There was a disciplinary hearing on 4 March and an appeal on 23 March. At both those hearings the decision was made to dismiss the Appellant on the ground of misconduct, elaborated in their Notice of Appearance as persistent short term absenteeism. The Tribunal held quite emphatically that that was unfair because the Respondents relied upon the various periods of illness, even though they had been certified in a way in which complied with the Respondents' procedures. The Tribunal also held that the dismissal was unfair because the disciplinary meeting was not properly convened although it might well have been that impropriety was remedied by a properly constituted appeal procedure. There has been no appeal against these decisions. The Tribunal went on to hold that if the Respondents had had a properly constituted dismissal procedure they would have commissioned a medical report. The medical report would have shown, either that the Appellant was a malingerer, alternatively that the Appellant had a medical condition or had an accumulation of medical conditions which meant that he was incapable of work. They would have dismissed him on 1 or either of those grounds and that the whole procedure would only have taken another 4 weeks.
6. Miss Barber argues powerfully on behalf of the Appellant that there is clearly a possibility in view of the nature of the Appellant's illnesses over the previous years which are set out in paragraph 1 of the skeleton argument, that a properly commissioned medical report might have determined that the Appellant was just a singularly unfortunate person who had had an accumulation of perfectly genuine illnesses. It might have shown that from that date onwards he was somebody who might reasonably be expected to be available for work without a whole series of continuing medical interruptions. The fact that the Tribunal found to the contrary is arguably not based on any evidence which is set out in their decision. In those circumstances it seems to us that there is a reasonable argument that the Tribunal were wrong in

the way in which they applied the decision at the House of Lords in Polkey v A.E.Dayton Services Limited [1988 AC 344]. Although Miss Barber has not mentioned the authorities, it is helpful to know that the Court of Appeal in O'Dea v ISC Chemicals [1995] IRLR 599, disapproved the distinction between procedural and substantive matters in making a Polkey reduction.. We find that there is a reasonably arguable case as to whether there was any evidence before the Tribunal to justify the prediction which they made or whether it was so speculative as to be perverse. In those circumstances we order that this appeal should proceed to a full hearing.